Kindred v. Columbus Country Club, Inc.
| Docket Number: | 2003-CT-00045-SCT Linked Case(s): 2003-CA-00045-COA ; 2003-CT-00045-SCT ; 2003-CT-00045-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 09-08-2005 Opinion Author: RANDOLPH, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Exclusion of testimony - Discovery violation - M.R.C.P. 33(d) - Intimidation of witness Judge(s) Concurring: Smith, C.J., and Carlson, J., Concur. Graves, J., Non Participating Judge(s): Diaz, Easley and Dickinson, JJ., Dissenting Author : Cobb, P.J., Dissent Joined By : Waller, P.J., Concurs in Result Only: Graves, J., Procedural History: Jury Trial Nature of the Case: CIVIL - WRONGFUL DEATH Writ of Certiorari: yes Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 09-05-2002 Appealed from: LOWNDES COUNTY CIRCUIT COURT Judge: Lee J. Howard Disposition: JURY VERDICT AND JUDGMENT IN FAVOR OF COLUMBUS COUNTRY CLUB, INC. ON ALL ISSUES. CASE DISMISSED WITH PREJUDICE. Case Number: 2000-0156CVI |
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| Note: | The Court affirmed the judgments of the Court of Appeals and the circuit court. See the original COA opinion at http://www.mssc.state.ms.us/Images/Opinions/CO22139.pdf | |
| Party Name: | Attorney Name: | |||
| Appellant: | JIM KINDRED, INDIVIDUALLY, AS WRONGFUL
DEATH BENEFICIARY, AND ON BEHALF OF THE
ESTATE OF DIANA KINDRED, DECEASED |
JIM WAIDE, LUTHER C. FISHER |
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| Appellee: | COLUMBUS COUNTRY CLUB, INC. | JEFFREY DEAN LEATHERS, MICHAEL D. GREER, ORLANDO RODRIQUEZ RICHMOND |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wrongful death - Exclusion of testimony - Discovery violation - M.R.C.P. 33(d) - Intimidation of witness |
| Summary of the Facts: | As Jim and Diana Kindred traveled past the Columbus Country Club, a tree on the Country Club’s property fell across the Kindred’s car, fatally injuring Diana. Jim filed a wrongful death lawsuit against Columbus Country Club alleging that the Country Club’s negligence was the proximate cause of Diana’s death. The jury found in favor of the defendant, and Kindred appealed. After the Court of Appeals affirmed, the Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Issue 1: Exclusion of testimony Kindred argues that the court erred in excluding the testimony of James Traywick, because Traywick’s credibility should not have been for the judge to decide, but should have been a jury issue. Decisions as to the weight and credibility of a witness’s statements are the proper province of the jury, not the judge. Kindred further argues that the court erred when it refused to allow Traywick’s testimony on the basis that Traywick had not been disclosed as a witness prior to trial and that he was not listed on the pretrial order. While it is true that Traywick’s name was not disclosed in pre-trial discovery, it was the Country Club, not Kindred, which had a duty to disclose Traywick, if in fact Traywick was known by the Country Club to have cut, trimmed, or inspected the tree. In response to an interrogatory asking for such information, the Country Club indicated “Unknown.” The Country Club should have either made a reasonable and diligent inquiry of its business records whether such entity existed, and then answered either “none” or have identified the entity with relevant knowledge, if one existed, or could have chosen to utilize M.R.C.P. 33(d) and given Kindred a reasonable opportunity to examine business records that might have contained such information. Where as here, a person claiming relevant evidentiary knowledge shows up at trial, both sides must be given an opportunity to learn what the surprise witness knows about the case. However, Kindred failed to seek the offered relief and proceeded with only a proffer, but did not move for a continuance. Because Kindred did not request a continuance and/or a mistrial after the judge first offered the plaintiff an opportunity to move for a continuance and then to move for a mistrial, Kindred waived his right to complain of the exclusion of the witnesses. Issue 2: Intimidation of witness Kindred argues that the court erred by failing to grant a new trial based on allegations of intimidation of a witness. At the hearing, Kindred’s attorney called only one witness to the alleged intimidation. The trial judge found that this testimony was not credible. There being no other witnesses, there is insufficient evidence to grant a new trial. |
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